Who got the land?
When Joseph Housoy of Outagamie County, Wisconsin, executed his will on the 5th day of January 1891, there was something fairly important that he left out.
Oh, it included a lot of what you might expect — the fact that he was a resident of the town of Deer Creek, the usual boilerplate about being of sound mind and memory, the fact that the document was signed, sealed, published and declared to be his will with the usual number of required witnesses and so on.
And it had the nice genealogical details like the names of his six children, including the married names of his daughters, and the name of his wife.
So what did he leave out?
The short document set out six specific directions:
1st. It is my will that all my funeral expenses be paid out of my property (Real Estate).
2nd. I give and bequeath to my son Jake ($100.00) One hundred dollars.
3rd. I give and bequeath to my daughter Addie Lange ($5.00) Five Dollars.
4th. I give and bequeath to my daughter Josephine Roden ($5.00) Five Dollars.
5th. I give and bequeath to my daughter Louise Lareso ($5.00) Five Dollars.
6th. I give, devise and bequeath the balance of my property both real and personal after my death and the death of my wife Mary to my two Sons John and Henry to be divided equally amongst them both, the Real estate being the NE 1/4 of the NW 1/4 Sec. 33. Township 24. Range 15. East. Deer Creek Wis.1
Okay. Now what do you think? What’s missing? And here The Legal Genealogist means besides the failure to name an executor. What else do we not know based on what Joseph said in his will?
See it? Good.
If not, let me ask you a question: exactly what happened to Joseph’s land after his death … and before the death of his wife Mary?
Oy! The will doesn’t say, does it?
We know it goes to John and Henry in equal shares after Mary dies. But what happens to it in the interim? And how do we know?
Yet another case where the answer depends on the law.
The fact is, both before and after Joseph’s death, Wisconsin law was very clear about situations like this one. As of 1889, the law provided that:
When the owner of any homestead shall die, not having lawfully devised the same, such homestead shall descend, free of all judgments and claims against such deceased owner or his estate except mortgages lawfully executed thereon and laborers’ and mechanics’ liens, in the manner following:
(1) If he shall have no lawful issue, to his widow.
(2) If he shall leave a widow and issue, to his widow during her widowhood, and upon her marriage or her death to his heirs…2
That language was the language in force when Joseph wrote his will, when he died (around 1897), and for many years thereafter.3
Since Joseph only owned one piece of land — the land where he and his wife lived — this section of the law about homesteads applied. Nearly 30 years earlier, the Supreme Court of Wisconsin had clearly defined the term “homestead” as “the land where is situated the dwelling of the owner and family.”4
So Joseph didn’t need to say what would happen to his land between his death and the death of his wife Mary. The law supplied that: the land went to Mary. All Joseph did by mentioning it at all was change where the land went after Mary died. Instead of going to all of his children, as the law would have provided, he gave it to his two youngest children alone.
- Outagamie County, Wisconsin, Will Book 2: 502, Will of Joseph Housoy, 5 Jan 1891; County Registrar’s Office, Appleton; digital images, “Wisconsin, Outagamie County Records, 1825-1980,” FamilySearch (https://familysearch.org : accessed 5 Aug 2013). ↩
- Chapter 102, §2271, in Arthur L. Sanborn and John Berryman, Annotated Statutes of Wisconsin: Containing the General Laws in Force October 1, 1889 (Chicago: Callaghan & Co., 1889), 1: 1318. ↩
- See e.g. Chapter 102, §2271 in Wisconsin Statutes, 1921 (Madison, Wisconsin: State of Wisconsin, 1921) 2: 1770; digital images, Google Books (http://books.google.com : accessed 5 Aug 2013). ↩
- Bunker v. Locke, 15 Wis. 635, 638 (1862). ↩